Blogs And The Law (John Wilpers)

BLOGGING AND THE LAW

BLOGGING AND THE LAWHave your say

AND stay out of court and jail

BLOGGING AND THE LAWBLOGGING & THE LAW

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While the Internet retains some of the Wild West feel, blogging is increasingly being shaped and governed by state and federal laws

Lately, it has become a mine-field of potential legal issues. The situation is exacerbated by the fact that the law in this area is in flux.

Here are several of the most important U.S. laws related to blogging, and some simple and straightforward tips for safely navigating them.



The Legal Use of Images & Thumbnails:

Because of the obvious copyright issues with just copying and pasting someone else’s picture from their site to yours without permission (it’s a clear violation of U.S. law), bloggers have come up with two techniques for using the images of others: inline linking and thumbnails.

Inline linking is a way of linking in which the picture appears on your blog as though it were part of the page the reader is viewing, but in fact the image is pulled from another site altogether when the page is loaded. Thumbnails, are simply smaller lower quality versions of the same image which link to the source.



What is the law?

Unfortunately, the law on inline linking isn’t straightforward. With image links, courts are concerned both with copyright infringement and trademark infringement, which in simple terms means they want to stop bloggers from passing off someone else’s name or trademark as their own. At this point, the only way to be safe is to get permission directly from the creator of the work or to get your images through sites like Flickr which offers creative commons images or istockphoto where you can cheaply purchase royalty-free images.

The law on thumbnails is a clearer. As long as you actually create thumbnails, which have standardized dimensions, and are not just reducing the size of an image slightly, a US Circuit court has held that thumbnailing is protected under the fair use exception of Copyright Law.

http://www.flickr.com/



How to stay out of trouble:

1. NEVER inline link or upload images that don’t belong to you, without the owner’s permission.

2. ALWAYS purchase or use creative license pictures if possible (and learn how to credit the owner).

3. CONSIDER that even though courts have stated that thumbnails CAN fall under the fair use exception, it doesn’t mean that all thumbnails are necessarily legal. There are four factors that court’s use to decide if something qualifies for fair use, and given that only a few courts have considered the issue, don’t be surprised if some thumbnails that don’t meet the four factors are deemed illegal.



Are Bloggers Protected from Journalism Shield Laws?

Whether the local newspaper reporter is ready to admit it or not, bloggers have begun to supplant traditional print reporters as sources of information. Unfortunately, the laws that have protected print journalists from revealing confidential sources do not always map easily onto the role that bloggers play in media. Thus the question of whether a blogger will be legally permitted to keep his source’s information confidential if subpoenaed isn’t an easy one to answer.



What is the law?

Bloggers can be excluded from shield laws that have traditionally protected print reporters. Currently, 31 states and the District of Columbia have shield laws, while judicial decisions have provided protection in another 18 states. As the laws have been interpreted, however, they only apply to journalists in the traditional sense. That doesn’t mean that they exclude bloggers, only that for a blogger to qualify for protection he must meet the standards laid out by the courts for “traditional journalism.”

The basic question is whether you fall within your state’s definition of those covered. Unfortunately every state is different. While some specifically limit the privilege to print media, those that are open to including bloggers often look for the exercise of editorial control which includes qualification of your sources, fact-checking and considerations of credibility. Basically, you need to treat your blog as though you are putting forth facts as opposed to your opinions, and then take regular steps to ensure that the facts you present are accurate.




1. NEVER assume that you are protected by shield laws.

2. ALWAYS exercise editorial control and investigate your state’s shield laws to see the specific criteria for qualifying for protection.

3. CONSIDER that there are efforts underway by respected organizations who are arguing for the extension of shield laws to cover both formal and informal blogger journalists. But while bloggers in the future may be afforded this protection, today you need to do the research to know where you stand.



Is Deep Linking Legal:

One of the biggest advantages that blogging has over traditional media is the convention to include links in an article which connect the reader directly with the source. The links could direct the reader to a file, a different page on the same site or to a new site altogether. Despite the generally helpful nature of linking and the Internet’s open platform, however, linking is not free from US government regulation.



What is the law?

The biggest issues in linking involve copyright law and deep linking. Deep linking is when a blogger who places a link on his or her site leading not to the front door of a site (e.g. boston.com), but to a page within that site (e.g. www.boston.com/soxlose).

Currently, no law explicitly bans all deep linking to content you do not own. However, courts have declared that individual deep links violate state law if they are not cited correctly. Thus, passing off someone else’s work as your own by linking to a site in a manner in which it appears that the linked-to content is a part of your site is considered copyright infringement and violates state laws that govern competitive business practices. But, if you make it clear that the deep link you are providing isn’t to your own site, you should be OK. The leading case is Ticketmaster Corp. v. Tickets.com, Inc. TicketMaster argued that a deep link by Tickets.com to a TicketMaster ticket purchase page was a copyright infringement because traffic was routed through the back door of the site. Thus far, however, no court has found that deep linking by a blogger is a copyright infringement or trespass.




1. NEVER claim that a page or site is your work unless it actually is.

2. ALWAYS clearly distinguish between your work and someone else’s.

3. CONSIDER that deep linking is a pretty well-established blogging practice, so if you’re deep linking to other bloggers or newspapers, you’re probably fine. But that doesn’t mean that every other blogger knows the law, so you’re likely to get an occasional angry email. If you want to play it ultra-safe, consider emailing the webmaster for permission and including a front page link next to your deep link.



Whether to Disclose Paid Posts:

Over the last five years, bloggers have begun to displace traditional media outlets as individuals’ source for reliable information and recommendations.

This development has created big opportunities for advertisers to get bloggers to endorse a product or service, primarily through posts or affiliate links. But as the practice and influence of bloggers has grown, U.S. law has come to govern this area.



What is the law?

The Federal Trade Commission published a recommendation that companies who promote their product through word-of-mouth marketing must disclose these relationships. The recommendation applies explicitly to blogging, meaning that bloggers must disclose it if they are being paid to promote or review a product.

PayPerPost and ReviewMe are websites that link advertisers up with bloggers who want to earn money for writing about the companies’ products. In light of the FTC recommendation, PayPerPost and ReviewMe bloggers must disclose that they are being paid for their endorsement. Beyond those sites, the larger industry of “Buzz Advertising” uses informal emails and payments between bloggers. The FTC recommendation includes these informal payments as well, meaning that even under-the-table reviews must be disclosed. But considering that to date no blogger has been prosecuted for violating the FTC’s recommendation, it isn’t clear how strict the FTC is going to be or the punishments that will be imposed.




1. NEVER claim that you are an objective, unbiased source if you are being paid to provide information.

2. ALWAYS make it easy for your readers to distinguish between advertising and editorial content.

3. CONSIDER that even though the FTC’s paid review disclosure recommendation does not appear to apply to links, meaning that webmasters aren’t required to “NoFollow” the paid links they give as of now, scholars at the University of Chicago Law School are currently discussing this as a future development for e-commerce law.



Who Owns User-Developed Content and Can You Delete It?

For those of you who have opened your sites up to user-driven content, be it comments, reviews, or a bulletin board, the question of who legally owns the content is an important one for deciding what you can and cannot do with it. Thankfully, the answer is pretty straightforward, and so are the solutions for dealing with it.



What is the law?

It may come as a surprise to many bloggers, but you do not own the user-driven content on your site. It is the copyrighted property of the author. The analysis is straightforward; copyright law only requires that an author create an original work and write it out in order to grant that person a copyright. The fact that you do not own the user-driven content on your site can create a number of headaches for bloggers, such as an obligation to remove a comment whenever the author requests.

But if you include a “terms of service”document spelling out that you will have a license in all content posted on your site and, more specifically, that you will not have a duty to modify or withdraw posts but may do so if you choose, you can ensure that you will have control over the user-driven content on your site even if you do not have ownership of it.




1. NEVER treat comments as though you own them by manipulating them or deleting them without having included a terms of service which gives you permission to do so.

2. ALWAYS include an extensive terms of service that explains all of your rights with respect to user-driven content.

3. CONSIDER that if you are allowing anonymous posts you will have no way of verifying the true owner of a comment when someone emails you asking you to take it down. Consequently, you should make sure to at least collect basic identifying information before allowing someone to comment or post on your site.



The Duty to Monitor Blog Comments, and the Question of Liability:

If you allow user-created content (e.g., comments, reviews, or a bulletin board), you may have had to deal with slander, libel, copyright infringement, or just plain hateful speech content on your site.

Even though you did not have anything to do with the content, people inevitably look to you to fix the problem or even to blame when someone gets hurt. This raises two important questions: 1) Are you required (or allowed) to turn the offender’s name over to authorities, and 2) What is your duty to monitor the user-generated content?



What is the law?

Section 230 of the Communications Decency Act governs a blogger’s liability for user-generated content. Thankfully, it carves out broad protection for bloggers with only two exceptions. The law was designed to encourage free speech by allowing ISP’s, bloggers, and message board webmasters to focus on building participation rather than on the potential liability of getting sued for a user’s crimes. While it protects bloggers from things like having to monitor for defamation, slander, or hurtful talk, the law does not provide protection for federal crimes or intellectual property violations, meaning that you can potentially be found contributorily liable if this that takes place on your site.

As to whether you must (or can) turn over the poster’s contact information to the authorities if a suit is brought, the answer is less clear. A leading case is Doe v. Cahill. The court required the service provider to identify the anonymous poster. But other courts have gone the other direction, and Congress is revisiting the issue. At this point, the safest path is to explicitly state in the terms of use that you will turn over the information to any and all requesting authorities so that you will be covered. It isn’t a perfect solution, but it is better than getting sued.




1. NEVER allow criminal comments or stolen content to remain on your site. Users may complain that you’re stifling their free speech, but it all boils down to the fact that you simply cannot afford to be sued.

2. ALWAYS include in your terms of use document that you will disclose all user personal information to requesting authorities.

3. CONSIDER that moderating your message boards for federal criminal behavior and intellectual property infringements is not just an important way to keep on the right side of the law, it also sets the tone for the type of content that is permissible on your site and will help foster a friendly and collegial environment.



Spam Laws and Which Unsolicited Emails are Legal:

We all hate the Viagra and Yahoo! Lottery emails that fill up our junk folder everyday. But what about your site’s newsletter: that couldn’t be considered spam could it? Unfortunately, it might if you don’t comply with all of the requirements on mass email that US law requires.



What is the law?

The CAN-SPAM Act of 2003 requires the labeling of unsolicited, commercial e-mail as well as opt-out instructions for recipients, including the sender’s physical address. False or misleading header information and deceptive subject lines are also prohibited. Each violation of these provisions is subject to fines of up to $11,000.

If you are planning to send out a mass email, you should be clear about who you are and your purpose for emailing the recipient. Don’t get too creative with the subject line. Include a valid physical postal address. Finally, provide detailed instructions on how a recipient can refuse future emails from you. You can give them a menu of choices for opting out of certain types of emails, but ultimately whatever you offer must be clear and you must offer a way for the recipient to stop receiving all commercial emails from your address.




1. NEVER use false or misleading information in the header or subject line.

2. ALWAYS identify the email as commercial, identify yourself, state your purpose and include information on how the recipient can opt out of future unsolicited emails.

3. CONSIDER that courts aren’t clear on what qualifies as “mass email.” While almost every spamming suit brought has been against the prototypical person sending 10,000 Viagra emails a day, in theory, the person sending 150 unsolicited emails with a misleading title is also in violation.



Limited Liability Laws & Incorporating:

When you started blogging, you probably imagined it as a hobby rather than a business involving serious legal issues.

That’s why the vast majority of bloggers are currently operating their business as a DBA which is the default and which offers no legal protection. Bloggers are often confused as to whether they need to form a legal entity for their business, what kind they should form, and how much protection it offers. Thankfully, the answers to these questions are relatively straightforward.



What is the law?

Forming a legal entity, whether it be a Corporation, an LLC or an LLP, all provide limited liability. Limited liability means that when something goes wrong and someone sues the company, they can only get to the assets that are in the company and not your personal assets such as your personal bank account. The protection offered by a limited liability entity isn’t perfect, but if you keep your personal and business finances separate, make it clear when you are acting as a representative of the company, and otherwise act like a company, the courts will generally treat you like one as well.

Most Fortune 500 companies today are Corporations, which leads many bloggers to believe that there is something desirable about forming that model for themselves. The truth, however, is that for almost every single blogger forming an Limited Liability Company (LLC) is the way to go. An LLC carries all the same legal protections as a Corporation (in fact courts apply the exact same statutes to both), while letting you avoid all of the administrative hassles and giving you a better tax arrangement.




1. NEVER mix personal and company funds . 2. ALWAYS form an LLC rather than a Corporation (Inc.) 3. CONSIDER the state you form your LLC in determines the law and the state taxes.

The vast majority of LLC’s are formed in Delaware or Nevada because of the strong case laws which tend to favor companies over individuals in lawsuits, but at a minimum creates a set of clear laws for companies to use if something goes wrong.

Forming an LLC is a quick and relatively cheap process:

1. Choose a name for your business that complies with your state’s LLC rules. 2. File articles of organization with your state’s LLC filing office. 3. Create an operating agreement to set up the rules for ownership and operation. 4. Obtain licenses/permits (not applicable for most bloggers). 5. Some states may require that you publish a notice of your intent to form an LLC.



Domain Name Trademark Issues:

If you’re just starting out as a blogger, chances are you don’t have a trademark yet. However, large corporations do. If you’ve registered a domain name that a trademarked entity can lay claim to, you may have to give it up.



What is the law?

In November 1999, Congress passed the Anti-cybersquatting Consumer Protection Act, which makes it easier for individuals and companies to take over domain names that are confusingly similar to their names or trademarks. Trademark infringement cases can be long, drawn-out, expensive processes. The Internet Corporation for Assigned Names and Numbers (ICANN) decided to streamline the process by creating the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, only three things need to be proven:

1. The trademark owner owns the trademark, 2. The party that registered the domain name has no legitimate right or interest in the name, and 3. The domain name was registered and used in bad faith.

The UDRP has made domain name disputes faster, cheaper and universal. It also tends to favor trademark holders. A leading case in the area of trademark disputes is Continental Airlines, Inc. v. continentalairlines.com. In that case, the dotcom was simply re-routing visitors to a travel site where they could purchase Continental Airline tickets plus pay an extra $15 fee to use the service. The court awarded the domain to the airline on the basis of trademark infringement.

While easy cases like Continental are relatively clear, a number of bloggers have had their domains taken from them in less clear situations. For example, the terms “no legitimate interest” or “bad faith” can be confusing and lead to honest bloggers losing domains.




1. NEVER register a domain in the name of an existing trademark. The days of profitable cyber-squatting are long gone, and attempting to do so today will only cost you time and money.

2. ALWAYS check online to verify that there aren’t any public trademarks already registered for your domain.

3. CONSIDER that a free search will only reveal the registered trademarks (and not even a complete listing at that). A name need not be registered in order to receive treatment as a trademark by courts. One of the best ways to do a free check for these “common law marks” is to simply do a search-engine search for the name of the domain you want to use as well as some common variations.

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Blogs And The Law (John Wilpers)